Selected quad for the lemma: death_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
death_n	witness_n	witness_v	word_n	133	3	4.0018	3	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A66733	The law of laws, or, The excellencie of the civil law above all humane laws whatsoever by Sir Robert Wiseman ... ; together with a discourse concerning the oath ex officio and canonical purgation.	Wiseman, Robert, Sir, 1613-1684.; Lake, Edward, Sir, 1596 or 7-1674.	1664 (1664)	Wing W3113A; ESTC R33680	273,497	368

life contrary to St. Paul which seemeth something Anti-Evangelical The yoke of the Gospel should be easie And also Against condemnation upon a single testimony if thought fit that none should be condemned to dye upon a single testimony when there is no other kind of proof by circumstances or violent or vehement presumptions equivalent to a witness that makes a kind of semiplena probatio at the least as in the Canon Law In the mouth of two or three witnesses every saying shall be confirmed sayes the Levitical Law which is repeated in the New Testament and in a manner at least is made Lex Evangelizata The Law-maker Truth Justice in the abstract could as well have said In ore unius vel duorum testium as duorum vel trium if he had thought it so fitting and yet as before the Gospel seems to pinch harder then the Law To that Objection That then many Malefactors would escape it may be answered That secret things belong to the Lord and to him they are to be left and that it is better ten Knaves should escape then one guiltless man should be hanged We have seen and heard how even in a manner miraculously God hath often revealed murther and great crimes that we may suppose that when such crimes cannot be in the ordinary way detected it pleases God they shall be done extraordinarily Many instances might be given of the sad consequences by putting to death upon the testimony of a single witnesse Judge Fortescue in his book De laudibus legum Angliae relates a passage about a Gentlewoman in Sarisbury that was put to death even burnt at a stake for murdering her husband and that sentence given upon the testimony of a single witness which witness not long after upon his death voluntarily and in a most penitent manner confessed he had given false witness against that Gentlewoman and that she was no wayes guilty of that murther for which she was put to death And Judge Fortescue there speaking of the Judge that gave sentence against her hath these words as I take it or to this effect the book is not now by me as they are there in the Latine version out of the Law French Soepius iste judex mihi fassus est quod nunquam in vita sua animum suum super hoc facto purgaret A notable instance this way to relate no more being numerous happened in London not many years since as 't is credibly reported A young man a Lawyers Clerk made love to a Gentlewomans Chamber-maid and a fellow-servant of the Chamber-maids keeping company much with her and the young man using also kind dalliance towards her she conceived that he loved her better then the Chamber-maid but afterwards perceiving she was mistaken she boyled with revenge against him and the Devil watching as a roaring Lion whom he may devour instigated her to accuse him of theft that he had stoln from her Masters house and taken away under his cloak a Silver Boll Upon this bare single testimony of hers the Jury found him guilty he was condemned and dyed for it Not long after the Chamber-maid grieving for the loss of her espoused husband seeing her fellow-servants Trunk or Box unlocked list up the Cover and there saw that very Boll which she very well knew for which the young man was condemned and suffered she calls up her master who found it to be the same Boll which she he shewing it to her could not deny upon this she was prosecuted condemned and suffered death and the Chamber-maid fell mad with grief and dyed And all this came from this judgment upon the testimony of a single witnesse Should any object That this might happen upon the testimony of two or more witnesses It is possible but not so probable and the safe way is to follow the Rule afore-mentioned In the case of Treason two witnesses are required and very requisite and in other crimes capital especially when also in many cases that are not capital two witnesses are required why might it not be reasonably expected though the atrocity of Treason is high yet as to the person offending and suffering the punishment by losse of life is little different And also Touching Juries if though sitting that Juries of life and death as also in other Actions both criminal and civil should be considered of and better Juries impanelled then often are and the Sheriff and Under-Sheriff and other inferiour Officers power in impannelling such Juries be looked after 40 s. per annum as is touched above was in the beginning of that Law or custom of tryal by Juries a good considerable estate and so the persons probably more considerable and knowing They anciently used to be twelve Knights so sayes Sir Edward Coke in his Comment upon Littletons Tenures citing Mr. Lambert Many instances might be given of the strange Verdicts given by some such Juries out of their ignorance or wilfulness or both who oftentimes expresly deny to follow the Judges directions but go quite contrary but I spare to instance them in reverence to the Law under which I was born and live and the practice thereof both which especially in most parts thereof are very excellent And we see what Pamphlets have been published by John Lilburn if not by others too affirming the power of Juries not as is commonly held to be onely in matter of fact but in matter of Law too and how they have controuled learned Judges in their Verdicts and obstinately carried it against them and how the meaning of that Axiom Ex facto jus oritur hath been extremely rack'd The meaning of Legalis homo to qualifie him to be of a Jury is not nor formerly was meant to be onely a man of 40 s. per annum but to be at least in some good measure in legibus peritus as some are of opinion and so as it were a kind of assistant to the Judge And also if thought sitting New Laws to be made upon new accidents that new Laws should be made upon emergencies and accidents when they happen and are notorious and publickly known be the crimes never so heynous and horrid Till they have happened it may be thought fit not to make a prohibitory Law against them for the reason afore mentioned Ne dum prohibent jubent As namely of making Eunuches of men or women Making of Eunuchs That case may be remembred of the Horse-gelder in Nottinghamshire that spayed a young woman and being a casus omissus the Judge could find it no more then a misdemeanour It hath been anciently forbidden by the Imperial Laws and the punishment is capital Cod. de Eunuchis lib 4 tit 4.2 l. 1. The stealing of a Winding-sheet out of a Grave That abominable basenesse of a woman and a Mastiff-dog Stealing of the Winding-sheet out of the Grave not far from Temple-bar London not many years since if the Law be not plain enough in that case that it may

met withall Semper in dubiis benigniora praeferenda sunt s l. 56. Dig. De reg ju Rapienda occasio est quae praebet benignius responsum t l. 168. Dig. cod In re dubia benigniorem interpretationem sequi non minus justius est quàm tutius u l. 119. Dig. cod In poenalibus causis benignius est interpretandum x l. 155. Parag. fin Dig. cod ca. 49. ext cod Satius est impunitum manere facinus nocentis quàm innocentem condemnare y l. 5. Dig. De poen Semper in obscuris quod minimum est sequimur z l 9. Dig. De reg jur Odia restringi favores convenit ampliari a Ga. 15. ext cod and the like to an infinite number Not any thing short of the same Seneca b Epist 81. when he sayes Reus sententiis paribus absolvitur semper quicquid dubium est humanitas inclinat in melius Where the suffrages of a Court are equal the defendant stands acquitted and where any thing happens to be doubtful clemency will alwayes pitch upon the gentlest resolution Neither does it derogate from the clemency of the Civil Law that it seems to deal so sharply with those against whom there are grounds enough to suspect them of some enormous crimes whereof they are accused but not evidence full enough to condemn them as to allow such persons to be c Dig. Co. de Quaestion set upon the Rack thereby to manifest their innocence by an obstinate denial or to discover their guilt by a plain confession For the onely ground of this austere proceeding was a great tenderness not to take away the lives of any but upon most manifest and undeniable proof and yet with a care notwithstanding that for want of such full and clear proof which offenders through their secret workings would alwayes labour to prevent offences should not go unpunished to the endangering of the publick peace and welfare of other men When a man is criminally accused there are but two wayes to convict him either by his confession or by proof As to confession where is it seen that he that dares to offend highly when he comes to be examined does not deny it as boldly and who is there that does not excuse him for seeking thus to preserve himself Ignoscendum est ei qui sanguinem suum qualiter qualiter redemptum voluit sayes the d l. 1. Dig. De bonis eorum qui ante Civil Law it self that is He is to be pardoned meaning as to punishment that labours by any means to avoid the shedding of his own bloud As to proof the Romans were so tender of the lives and personal safety of their people that to convict a man by proof it was no easie thing but very difficult for they would neither inflict any corporal punishment nor condemn any man to death as some Christian States do at this day upon the testimony of one single witness though present when the act was done e Gomez var. resol Tom. 3. ca. 12. De Probat delict And in this it did exactly follow the best pattern of all other the Law of God f Deut. 19.15.17.6 Numb 35.30 One witness shall not rise up against a man for any iniquity or for any sin in any sin that he sinneth at the mouth of two witnesses or at the mouth of three witnesses shall the matter be established By the Roman Law therefore before death or other personal punishment could be inflicted there were to be two witnesses they must be free from all exception and especially they must be none of the accuseds complices who g l Final co de accusat could not be evidence against one another they must not by remote circumstances or by any light h l. absentem parag 1. Dig. De poen presumptions but clearly and concludently depose the thing and their testimony must be agreeing also not onely as to the act done but as to place time person and other material circumstances wherein if they did vary or disagree the proof was insufficient Three of the Roman Emperours Gratian Valentinian and Theodosius did all agree in giving to all publick accusers this advertisement i l. 25 co De Probat Sciant cuncti accusatores eam se rem deferre in publicam notionem debere quae munita sit idoneis testibus vel instructa apertissimis documentis vel indiciis ad probatïonem indubitatis luce clarioribus expedita Let all accusers take notice that they must offer that to publick Trial which is furnished with legal witnesses or attended with most luculent proof or may be made out by arguments of unquestionable conviction and clearer then the light it self The case therefore thus standing that the wickedness of Men was grown luxuriant and abounding that it acted in secret altogether that it would never betray it self and witnesses sufficient enough to condemn them could hardly be found It was but necessary k Bonum innocemis bono nocentis bonum commune privato ante habendum est ordinatae d●●e●tionis lege ex dilectione autem innocentium capitalia judicia nata sunt Grot. de jur-bell lib. 1. ca. 2. sect 8. for the publick peace and the safety of innocent and quiet men to make them by a vigorous course of trial either fear to offend or be instrumental to condemn themselves rather then they should be encouraged to offend freely out of a presumption that their evil actings should never be brought to light For if there were but one positive witness that saw the thing done as it was mercy and clemency in the Law not to condemn the accused presently upon so short a proof yet were it safe were it not l Sicut est aliquando misericordia puniens ita est crudelitas parcens Augustin cruelty to all the people were it not of ill example to absolve him quite without a further trial meerly because there was no better proof which their ill-minded subtilty making an ill use of the favour of the Law was a cause of too So that to bring men to the rack in such cases for trials sake is not to be censured for cruelty Non ex saevitia sed ex bonitate talia faciunt homines saith m l. ad Corin. 3.12 de poenis humanis agens St Chrysostome Such things are done by men not out of cruelty but goodness And I must say with n De justit Roman leg lib 2. dubit 64. arg l. 51. parag ult Dig. ad l. Aquil. Maestertius who stifly mantains this proceeding in the Roman Law sanè hic juris rigor si aliquis sit utilitate publica compensatur This rigour of the Law if it be any is recompensed with advantage to the whole Common-wealth for by the terrour hereof it is free from the machinations of wicked and lewd men And though there have been some as Ludovicus Vives